Supreme Court to take a fresh look at pleas on ex post facto eco clearance regime

A three-judge Bench of the Supreme Court on Monday (February 16, 2026) decided to take a fresh look at writ petitions and appeals concerning ex post facto environmental clearance of construction and public projects across the country.

The Bench headed by Chief Justice of India (CJI) Surya Kant scheduled the case for detailed hearing on February 25. The CJI said the court would not tolerate any adjournments on that day.

A Division Bench of the Supreme Court had struck down the Centre’s grant of ex post facto or retrospective environmental clearances (ECs) as a “gross illegality” and an “anathema” in a judgment on May 16, 2025.

However, a subsequent three-judge Bench of the court had recalled the May 16 judgment in a majority verdict delivered in November 2025.

The majority opinion for the three-judge Bench authored by Chief Justice (now retired) B.R. Gavai had concluded that the continued operation of the May 16 judgment would have a “devastating effect” and “thousands of crores of rupees” invested in building and infrastructure projects would “go to waste”. Justice K. Vinod Chandran had backed his view, forming the majority on the Bench.

Justice Ujjal Bhuyan, the third member of the Bench, had however recorded a sharp dissent. He had termed the majority view as an “innocent expression of opinion” which overlooked the “very fundamentals of environmental jurisprudence”.

The majority opinion of Chief Justice Gavai and Justice Chandran had, while recalling the May 16 judgment, ordered the writ petitions, including the lead plea by NGO Vanashakti, to be “restored to file”.

On Monday, petitioners, led by senior advocates Sanjay Parikh and Gopal Sankaranarayanan, argued that the majority opinion of November 2025 authored by Justice Gavai had only recalled the May 2025 judgment without expressly giving an authoritative finding on the validity of the two Office Memorandums (OMs) of 2017 and 2021, which had formed the bedrock on which the government had worked the ex-post facto environmental clearance regime.

The majority judgment in November 2025 had recorded that the Division Bench which struck down the OMs did not have the benefit of several judicial precedents before pronouncing their verdict on May 16.

Solicitor General Tushar Mehta, appearing for the Steel Authority of India, submitted that the May 2025 had put several significant public projects on hold, including an airport in Karnataka.

Senior advocate P. Wilson and Tamil Nadu Advocate General P.S. Raman submitted that a 218-crore cancer hospital project in the State and the construction of a District Collectorate office had been halted abruptly as an aftermath of the May 2025 judgment.